LECTURE XII.
JUDICIAL CONSTRUCTlONS OF THE POWERS OF CONGRESS.
I PROCEED to consider the cases in which the powers of congress have
been made the subject of judicial investigation.
(1.) Congress have declared by law, that the United states were entitled
to priority of payment over private creditors, in cases of insolvency,
and in the distribution of the estates of deceased debtors. The act of
congress of 31st July, 1789, sec. 91. confined the priority to custom
house bonds. The act of 4th August, 1790, ch. 33. sec. 45, limited the
priority in the same manner. The act of 2d May, 1792, placed the surety
in a custom house bond, who paid the debt, on the same footing, in
respect to priority, as the United States; and it confined the cases of
insolvency mentioned in the former law, to those of a voluntary
assignment, and of attachments against absconding, concealed, or absent
debtors. The act of 3d March, 1797, ch. 74. sec. 5 went further, and
gave the United States a preference in all cases whatsoever, whoever
might be the debtor, or however he night be indebted, in case the debtor
became insolvent, or the assets in the hands of his representatives,
after his death, were insufficient to pay his debts. This priority was
declared to extend to cases in which the debtor had made a voluntary
assignment of his property, or in which his effects had been attached as
an absconding or absent debtor, or in which an act of legal bankruptcy
had been committed. The act of March 2d, 1799. ch. 128. sec. 65,
provided. that in all cases of insolvency, or where any estate in the
hands of executors or administrators should be insufficient, debts due
to the United States, on bonds taken under the collection act, should
have preference.
These were the legislative provisions giving preference to debts due to
the United States; and in Fisher v. Blight, [1] the authority of
congress to pass such laws was drawn in question. The point discussed in
that case was, whether the United States, as holders of a protested bill
of exchange, negotiated in the ordinary course of trade, were to be
preferred to the general creditors, when the debtor becomes bankrupt.
The Supreme Court decided, that the acts of congress, giving that
general priority to the United States, were constitutional. It was a
power founded on the authority to make all laws which should be
necessary and proper to carry into effect the powers vested by the
constitution in the government of the United States. Where the end was
within the lawful powers of the government, congress possessed the
choice of the means, and were empowered to use any means which were in
fact conducive to the exercise of the powers granted. The government is
to pay the debts of the union, and must be authorized to use the means
most eligible to effect that object. It has a right to make remittances
by bills or otherwise, and to take those precautions which will render
the transaction safe. If this claim of priority interferes with the
right of the state sovereignties, respecting the dignity of debts, and
defeats the measures which they have a right to adopt to secure
themselves, it is a necessary consequence of the supremacy of the laws
of the union on all subjects to which the legislative power of congress
extends.
The principle is here settled, that the United States are entitled to
secure to themselves the exclusive privilege of being preferred as
creditors to private citizens, and even to the state authorities, in all
cases of the insolvency or bankruptcy of their debtor. But the court
observed, that no lien was created by the statutes giving the
preference. No bona fide transfer of property in the ordinary course of
business was overreached. It was only a priority of payment, which,
under different modifications, was a regulation in common use, and a
bona fide alienation of property, before the right of priority attached,
was admitted to be good.
The next case that brought into discussion this question of priority was
that of the United States v. Hooe. [2] It was there held, that the
priority to which the United States were entitled, did not partake of
the character of a lien on the property of public debtors. The United
States have no lien on the real estate of their debtor until suit
brought. If the priority existed from the time the debt was contracted,
and the debtor should continue to transact business with the world, the
inconvenience would be immense. The priority only applied to cases where
the debtor had become actually and notoriously insolvent, and being
unable to pay his debts, had made a voluntary assignment of all his
properly, or having absconded or absented himself, his property had been
attached by process of law. A bona fide conveyance of part of the
property of the debtor not for the fraudulent purpose of evading the
law. but to secure a fair creditor, is not a case within the act of
congress giving priority. In this case of the United States v. Hooe, a
collector of the revenue had mortgaged part of his property to his
surety in his official bond, to indemnify him from his responsibility as
surety and to secure him from his existing and future endorsements for
the mortgagor at bank; and the mortgage was held valid against the claim
of the United States, although the collector was, in point of fact
unable to pay all his debts at the time the mortgage was given, and
although the mortgagee knew when he took the mortgage, that the
mortgagor was largely indebted to the United States.
Afterwards, in Harrison v. Sterry, [3] it was held, that in the
distribution of a bankrupt's effects, the United States were entitled to
their preference, although the debt was contracted by a foreigner in a
foreign country, and the United States had proved their debt under a
commission of bankruptcy. Though the law of the place where the contract
is made, be, generally speaking, the law of the contract, yet the right
of priority forms no part of the contract. The insolvency which was to
entitle the United States to a preference, was declared, in Prince v.
Bartlett, [4] to mean a legal and known insolvency, manifested by some
notorious act of the debtor pursuant to law. This was giving to the
world some reasonable and definite test by which to ascertain the
existence of the latent and dangerous preference given by law to the
United States. In this last case, the effects of an insolvent debtor,
duly attached in June, were considered not to be liable to the claim of
the United States on a custom house bond given prior to the attachment,
and put in suit in August following. The private creditor had acquired a
lien by his attachment, which could not be devested by process on the
part of the United States subsequently issued. But the decision in
Thelusson v. Smith, [5] established the principle, that the preference in
favour of the United States, whenever it existed, cut out a prior
judgment creditor, for the law made no exception in favour of such a
creditor. It was considered, that the word insolvency in the acts of
congress of 1790, 1797, and 1799, meant a legal insolvency, and that a
mere state of insolvency, or inability in a debtor to pay all his debts,
gave no right of preference to the United States, unless it was
accompanied by a voluntary assignment of all the property for the
benefit of creditors, or some legal act of insolvency. The United
States, in all such cases, are to be first satisfied out of the debtor's
estate; but if, before the right of preference has accrued, he has made
a bona fide conveyance of his estate to a third person, or has mortgaged
the same to secure a debt, or if the property has been seized under an
execution, the property is devested from the debtor, and cannot be made
liable to the United States. The act of congress defeats the ordinary
preference of a judgment lien, in favour of the preference of the United
States, in the cases specified in the 65th section of the act of 1799.
The United States have, accordingly, a preference as creditors to the
extent above declared, in four cases, viz. (1.) In the case of the death
of the debtor without sufficient assets; (2) bankruptcy or legal
insolvency manifested by some act pursuant to law; (3) a voluntary
assignment by the insolvent of all his property to pay his debts; (4) in
the case of an absent, concealed, or absconding debtor, whose effects
are attached by process of law. The priority we. intended to operate
only where, by law, or by the act of the debtor, his property was
sequestered for the use of his creditors, and it is proper that this
prerogative right of the United States should be strictly construed, ant
precisely defined, for it is in derogation of the general rights of
creditors. [6]
2. The next question which called forth a construction from every part
of the government, as to the implied powers of congress, was, whether
congress had power to incorporate a bank. In the year 1791, the
secretary of the treasury had recommended the institution of a national
bank, as being of primary importance to the prosperous administration of
the finances, and of the greatest utility in the operations connected
with the support of public credit. But the bill for establishing a bank
was opposed in the house of representatives, as not authorized by the
constitution. It was contended, that the government of the United States
was limited to the exercise of the enumerated powers, and that the power
to incorporate a bank was not one of them, and if vested in the
government, it must be an implied power; and it was contended, that the
power given to congress to pass all laws necessary and proper to execute
the specified powers, must be limited to means necessary to the end, and
incident to the nature of the specified powers. On the other hand, it
was urged in favour of the bill, that incidental, as well as express
powers, necessarily belonged to every government, and that when a power
was delegated to effect particular objects, all the known and usual
means of effecting them passed as incidental to them; and it was
insisted, that a bank was a known and usual instrument, by which several
of the enumerated powers of government were exercised. After the bill
bad passed the two houses of congress, the question touching its
constitutionality was agitated with equal ability and ardour in the
executive cabinet. The secretary of state, and the attorney general,
conceived that congress had transcended their powers, but the secretary
of the treasury maintained the opposite opinion. Their respective
opinions were founded on a train of reasoning denoting great
investigation of all the leading and fundamental principles of the
constitution, and they were submitted to the consideration of the
President of the United States. It was argued against the
constitutionality of the act, that the power to incorporate a bank was
not among the enumerated powers, and to take a single step beyond the
boundaries specially drawn around the powers of congress, would be to
take possession of an undefined and undefinable field of power; that
though congress were authorized to make all laws necessary and proper
for carrying into execution the enumerated powers, they were confined to
those means which were necessary, and not merely convenient. It meant
those means without which the grant of the power would be nugatory, and
that if such a latitude of construction was allowed as to give to
congress any implied power on the ground of convenience, it would
swallow up all the list of enumerated powers, and reduce the whole to
one phrase. On the other hand, it was contended, that every power vested
in a government was, in its nature, sovereign, and gave a right to
employ all the means fairly applicable to the attainment of the end of
the power, and not specially precluded by specified exceptions, nor
contrary to the essential ends of political society; that though the
government of the United States was one of limited and specified powers,
it was sovereign with regard to its proper objects, and to its declared
purposes and trusts; that it was incident to sovereign power to erect
corporations, and, consequently, it was incident to the United Slates to
erect one in relation to the object that is entrusted to its management;
that implied powers are as completely delegated as those which are
expressed, and the power of erecting a corporation may as well be
implied as any other instrument or means of carrying into execution any
of the specified powers; that the exercise of the power in that case had
a natural relation to the lawful ends of the government, and it was
incident to the sovereign power to regulate and to employ all the means
which apply with the best advantage to that regulation; that the word
necessary in the constitution, ought not to be confined to those means,
without which the grant of power would be nugatory, and it often means
no more than needful, requisite, useful, or conducive to, and that was
the true sense in which the word was used in the constitution. The
relation between the measure and the end, was the criterion of
constitutionality, and not whether there was a greater or less necessity
or utility. The infinite variety, extent, and complexity, of national
exigencies, necessarily required great latitude of discretion in the
selection and application of means; and the authority intrusted to
government ought, and must be exercised, on principles of liberal
construction.
President Washington gave these arguments of his cabinet a deliberate
and profound contemplation, and it terminated in a conviction, that the
incorporation of a bank was a measure authorized by the constitution,
and the bill passed into a law.
This same question came before the supreme court of the United States in
1819. in the case of McCulloch v. The State of Maryland, [7] in
reference to the new bank of the United States, which war, incorporated
in 1816, and upon which the legislature of Maryland had imposed a tax.
Notwithstanding the question arising on the construction of the powers
of congress had been settled so far as an act of congress could settle
it, in 1791, and again in 1816, it was thought worthy of a renewed
discussion in that case. The Chief Justice, in delivering the opinion of
the court, observed, that the question could scarcely be considered as
an open one, after the principle had been so early introduced and
recognized by many successive legislatures, and had been acted upon by
the judicial department as a law of undoubted obligation. He admitted
that it belonged to the supreme court alone, to make a final decision in
the case, and that the question involved a consideration of the
constitution in its most interesting and vital parts.
It was admitted, that the government of the United States was one of
enumerated powers, and that it could exercise only the powers granted to
it; but though limited in its powers, it was supreme within its sphere
of action. It was the government of the people of the United States, and
emanated from them. Its powers were delegated by all, and it represented
all, and acted for all. In respect to those subjects on which it can
act, it must necessarily bind its component parts; and this was the
express language of the constitution, when it declared that the
constitution, and the laws made in pursuance thereof, were the supreme
law of the land, and required all the officers of the state governments
to take an oath of fidelity to it. There was nothing in the constitution
which excluded incidental or implied powers. The articles of the
confederation gave nothing to the United States but what was expressly
granted; but the new constitution dropped the word expressly, and left
the question, whether a particular power was granted, to depend on a
fair construction of the whole instrument. No constitution can contain
an accurate detail of all the subdivision of its powers, and of all the
means by which they might be carried into execution. It would render it
too prolix. Its nature requires that only the great outlines should be
marked, and its important objects designated, and all the minor
ingredients left to be deduced from the nature of those objects. The
sword and the purse, all the external relations, and no inconsiderable
portion of the industry of the nation, were intrusted to the general
government; and a government intrusted with such ample powers, on the
due execution of which the happiness and prosperity of the nation
vitally depended, must also be intrusted with ample means for their
execution. Unless the words imperiously require it, we ought not to
adopt a construction which would impute to the framers of the
constitution, when granting great powers for the public good, the
intention of impeding their exercise, by withholding a choice of means.
The powers given to the government imply the ordinary means of
execution; and the government, in all sound reason and fair
interpretation, must have the choice of the means which it deems the
most convenient and appropriate to the execution of the power. The power
of creating a corporation, though appertaining to sovereignty, was not a
great, substantive and independent power, but merely a means by which
other objects were accomplished; in like manner, as no seminary of
learning is instituted in order to be incorporated, but the corporate
charter is conferred to subserve the purposes of education. The power of
creating a corporation is never used for its own sake, but for the
purpose of effecting something else. It is nothing but ordinary means to
attain some public and useful end. The constitution has not left the
right of congress to employ the necessary means for the execution of its
powers to general reasoning. It is expressly authorized to employ such
means; and necessary means, in the sense of the constitution, does not
import an absolute physical necessity, so strong that one thing cannot
exist without the other. It means any means calculated to produce the
end. The word necessary admits of all degrees of comparison. A thing may
be necessary, or very necessary, or absolutely and indispensably
necessary. The word is used in various senses, and in its construction
the subject, the context, the intention, are all to be taken into view.
The powers of the government were given for the welfare of the nation.
They were intended to endure for ages to come, and to be adapted to the
various crises of human affairs. To prescribe the specific means by
which government should in all future time execute its power, and to
confine the choice of means to such narrow limits as should not leave it
in the power of congress to adopt any which might be appropriate and
conducive to the end, would have been most unwise and pernicious,
because it would be an attempt to provide by immutable rules for
exigencies, which if foreseen at all, must have been seen dimly, and
would deprive the legislature of the capacity to avail itself of
experience, or to exercise its reason, and accommodate its legislation
to circumstances.
If the end be legitimate and within the scope of the constitution all
means which are appropriate, and plainly adapted to this end, and which
are not prohibited, are lawful and a corporation was a means not less
usual, nor of higher dignity, nor more requiring a particular
specification, than other means. A national bank was a convenient, a
useful and essential instrument in the prosecution of the fiscal
operations of the government. It was clearly an appropriate measure; and
while the Supreme Court declared it to be within its power and its duty
to maintain that an act of congress exceeding its power was not the law
of the land, yet if a law was not prohibited by the constitution, and
was really calculated to effect an object intrusted to the government,
the court did not pretend to the power to inquire into the degree of its
necessity. That would be passing the line which circumscribes the
judicial department, and be treading on legislative ground.
The court, therefore, decided, that the law creating the Bank of the
United States, was one made in pursuance of the constitution; and that
the branches of the national bank, proceeding from the same stock, and
being conducive to the complete accomplishment of the object, were
equally constitutional.
The Supreme Court were afterwards led in some degree lo review this
decision, in the case of Osborn v. The United States Bank, [8] and they
there admitted, that congress could not create a corporation for its own
sake, or for private purposes. The whole opinion of the court, in the
case of McCulloch v. The State of Maryland, was founded on, and
sustained by, the idea, that the bank was an instrument which was
necessary and proper for carrying into effect the powers vested in the
government. It was created for national purposes only though it was
undoubtedly capable of transacting private as well as public business;
and while it was the great instrument by which the fiscal operations of
the government were effected it was also trading with individuals for
its own advantage. The bank, on any rational calculation, could not
effect its object, unless it was endowed with the faculty of lending and
dealing in money. This faculty was necessary to render the bank
competent to the purposes of government, and, therefore, it was
constitutionally and rightfully engrafted on the institution.
(3.) The construction of the powers of congress relative to taxation,
was brought before the Supreme Court in 1796 in the case of Hylton v.
The United States. [9] By the act of 5th June, 1794, congress laid a
duty upon carriages for the conveyance of persons, and the question was,
whether this was a direct tax within the meaning of the constitution. If
it was not a direct tax, it was admitted to be rightly laid, under that
part of the constitution which declares that all duties, imposts and
excises, shall be uniform throughout the United States; but if it was a
direct tax, it was not constitutionally laid, for it must then be laid
according to the census, under that part of the constitution which
declares that direct taxes shall be apportioned among the several
states, according to numbers. The Circuit Court in Virginia was divided
in opinion on the question, but on appeal to the Supreme Court, it was
decided, that the tax on carriages was not a direct tax, within the
letter or meaning of the constitution, and was therefore
constitutionally laid.
The question was deemed of very great importance, and was elaborately
argued. It was held, that a general power was given to congress to lay
and collect taxes of every kind or nature, without any restraint. They
had plenary power over every species of taxable property except exports.
But there were two rules prescribed for their government, the rule of
uniformity, and the rule of apportionment. Three kinds of taxes, viz.
duties, imposts, and excises, were to be laid by the first rule; and
capitation, and other direct taxes, by the second rule. If there were
any other species of taxes, as the court seemed to suppose there might
be, that were not direct, and not included within the words duties,
imposts, or excises, they were to be laid by the rule of uniformity or
not, as congress should think proper and reasonable.
The constitution contemplated no taxes as direct taxes, but such as
congress could lay in proportion to the census, and the rule of
apportionment could not reasonably apply to a tax on carriages, nor
could the tax on carriages be laid by that rule without very great
inequality and injustice. If two states, equal in census, were each to
pay 80,000 dollars, by a tax on carriages of eight dollars on every
carriage, and in one state there were 100 carriages, and in the other
1,000, the owner of carriages in one state would pay ten times the tax
of owners in the other. While A., in the one state, would pay for his
carriage eight dollars, B., in the other state, would pay for his
carriage 80 dollars. In this way, it was shown by the court, that the
notion that a tax on carriages was a direct tax within the purview of
the constitution, and to be apportioned according to the census. would
lead to the grossest abuse and oppression. This argument was conclusive
against the construction set up, and the tax on carriages was considered
as included within the power to lay duties, and the better opinion
seemed to be, that the direct taxes contemplated by the constitution,
were only two, viz. a capitation or poll tax, and a tax on land. The
court concluded, that a tax on carriages was an indirect tax on expense
or consumption, and, therefore, properly laid pursuant to the role of
uniformity.
In Loughborough v. Blake, [10] the power of taxation was again brought
under judicial discussion. The question was immediately of a local
nature, and it was whether congress had the right to impose a direct tax
upon the unrepresented District of Columbia; but there were principles
involved in the decision, which had an extensive and important relation,
to the whole United States.
It was declared, that the power to tax extended equally to all places
over which the government extended. It extended as well to the District
of Columbia, and to the territories which were not represented in
congress, as to the rest of the United States. Though duties were to be
uniform, and taxes were to be apportioned according to number, the power
was coextensive with the empire. The inhabitants of the territories of
Michigan, and of Florida ant Arkansas, for instance, as well as the
District of Columbia, though without any representation in congress,
were subject to the full operation of the power of taxation, equally as
the people of New-York or Massachusetts. But the court held, that
congress are not bound, though they may, in their discretion, extend a
direct tax to the territories as well as to the states. A direct tax, if
laid at all, must be laid on every state conformably to the census, and,
therefore, congress has no power to exempt any state from its due share
of the burthen. But it is understood that congress are under no
necessity of extending a tax to the unrepresented District of Columbia,
and to the territories; though, if they be taxed, then the constitution
gives the rule of assessment. This construction must be admitted to be
most convenient, for the expense of assessing and collecting a tax in a
territory, as the North West Territory, for instance, might exceed the
amount of the tax. Here is an anomalous case in our government, in which
representation and taxation are not inseparable, though the principle
that the power of taxation could not rightfully exist without
representation, was a fundamental ground of our revolution. The court
did not consider a departure from a general principle, in this case, to
be very material or important, because the case was that of territories
which were in a state of infancy, advancing to manhood, and looking
forward to complete equality as soon as that state of manhood should be
attained. It was the case also of the District of Columbia, which had
voluntarily relinquished the right of representation, and adopted the
whole body of congress for its legitimate government.
(4.) Congress have the exclusive right of pre-emption to all Indian
lands lying within the territories of the United States. This was so
decided in the case of Johnson v. M'Intosh. [11] Upon the doctrine of
the court in that ease, and in that of Fletcher v. Peck, [12] the United
States own the soil, as well as the jurisdiction, of the immense tracts
of wild and unpatented lands, included within their territories, and of
all the productive funds which these lands may hereafter create. The
title is in the United States, by the treaty of peace with Great
Britain, and by subsequent cessions from France and Spain; and the
Indians have only a right of occupancy, and the United States possess
the legal title subject to that occupancy, and with an absolute and
exclusive right to extinguish the Indian title of occupancy either by
conquest or purchase. The title of the European nations, and which
passed to the United States, to this immense territorial empire, was
founded on discovery and conquest; and, by the European customary law of
nations, prior discovery gave this title to the soil, subject to the
possessory right of the natives, and which occupancy was all the right
that European conquerors and discoverers, and which the United States,
as succeeding to their title, would admit to reside in the native
Indians. The principle is, that the Indians are to be considered merely
as occupants, to be protected while in peace in the possession of their
lands, but to be deemed incapable of transferring the absolute title to
another than the sovereign of the country. The constitution gave to
congress the power to dispose of, and to make all needful rules and
regulations respecting the territory, or other property belonging to the
United States, and to admit new states into the union. Since the
constitution was formed, the value and efficacy of this power have been
magnified to an incalculable extent, by the purchase of Louisiana and
Florida; and under the doctrine contained in the case I have referred
to, congress have a large and magnificent portion of territory under
their absolute control and disposal. This immense property has become
national and productive stock, and congress, in the administration of
this stock, have erected temporary governments under the provisions of
the ordinance of the congress under the confederation; and they have
appointed the officers to each territory, and allowed delegates in
congress to be chosen by the inhabitants every second year, and with a
right to debate, but not to vote, in the house of representatives. [13]
(5.) By the constitution of the United States, congress were, by general
laws, to prescribe the manner in which the public acts, records, and
judicial proceedings of every state, should be proved, and the effect
thereof in every other state. In pursuance of this power congress, by
the act of May 26, 1790, provided the mode by which records and judicial
proceedings should be authenticated, and then declared, that they should
have such faith and credit given to them in every court within the
United States, as they had by law or usage in the courts of the state
from whence the records were taken. Under this act it was decided, in
the case of Mills v. Duryee, [14] that if a judgment, duly
authenticated, had, in the state court from whence it was taken, the
faith and credit of the highest nature, viz. record evidence, it must
have the same faith and credit in every other court. It was declaring
the effect of the record, to declare the faith and credit that were to
be given to it. The constitution intended something more than to make
the judgments of state courts prima facie evidence only. It contemplated
a power in congress to give a conclusive effect to such judgements. A
judgment is, therefore, conclusive in every other state, if a court of
the particular state where it was rendered would hold it conclusive. Nil
debet is not a good plea in a suit on a judgment in another state,
because not a good plea in such state. Nul tiel record is the proper
plea in such a case. This same decision was followed in Hampton v.
M'Connel, [15] and the doctrine contained in it may now be considered as
the settled law of the land. It is not, however, to be understood, that
nul tiel record is, in all cases, the necessary plea; but any special
plea may be pleaded which would be good to avoid the judgment in the
state where it was pronounced. [16] And in Mayhew v. Thatcher, [17] the
court would seem to imply, that a judgment in one state, founded on an
attachment in rem, would not be conclusive evidence of the debt in other
states, if the defendant had not personal notice of the suit, so as to
have enabled him to defend it.
(6.) Congress have authority to provide for calling forth the militia to
execute the laws of the union, suppress insurrections, and repel
invasions; and to provide for organizing, arming, and disciplining the
militia, and for governing such part of them as may be employed in the
service of the United States; reserving to the states respectively, the
appointment of the officers, and the authority of training the militia,
according to the discipline prescribed by congress. The president of the
United States is to be the commander of the militia when called into
actual service. The act of 28th of February, 1795, authorized the
president, in case of invasion, or of imminent danger of it, to call
forth such number of the militia most convenient to the scene of action
as he might judge necessary. The militia so called out are made subject
to the rules of war, and the law imposes a fine upon every delinquent,
to be adjudged by a court martial composed of militia officers only.
These militia court martials are to be held and conducted in the manner
prescribed by the articles of war, and the act of 18th of April, 1814,
prescribes the manner of holding them.
During the last war, the authority of the president of the United States
over the militia, became a subject of doubt and difficulty, and of a
collision of opinion between the general government and the governments
of some of the states. It was the opinion of the government of
Connecticut, that the militia could not be called out, upon the
requisition of the general government, except in a case declared, and
founded upon the existence of one of the specified exigencies; that when
called out, they could not be taken from under the command of the
officers duly appointed by the states, or placed under the immediate
command of an officer of the army of the United States. Nor could the
United States lawfully detach a portion of the privates from the body of
the company to which they belonged, and which was organized with proper
officers. This would, in the opinion of the government of Connecticut,
impair, and eventually destroy, the state militia. When the militia are
duly called into the service of the United States, they must be called
as militia furnished with proper officers by the state.
Similar difficulties arose between the government of the United States
and that of the state of Massachusetts, on the power of the national
government over the militia. Both those states refused to furnish
detachments of militia for the maritime frontier, on an exposition of
the constitution, which they deemed sound and just.
In Connecticut, the claim of the governor to judge whether the exigency
existed, authorizing a call of the militia of that state, or any portion
of it, into the service of the union, and the claim on the part of that
state to retain the command of the militia, when duly ordered out, as
against any subordinate officer of the army of the United States, were
submitted to and received the strong and decided sanction not only of
the governor and council of that state, but of the legislature itself.
[18] In Massachusetts, the governor consulted the judges of the supreme
judicial court, as to the true construction of the constitution on these
very interesting points. The judges of the supreme court, who were
consulted, were of opinion, that it belonged to the governors of the
several states to determine when any of the exigencies contemplated by
the constitution of the United States existed, so as to require them to
place the militia, or and part of it, in the service of the union, and
under the command of the president. It was observed, that the
constitution of the United Sates did not give that right, by any express
terms, to the president or congress, and that the power to determine
when the exigency existed, was not prohibited to the states, and that it
was, therefore, as of course, reserved to the states. A different
construction would place all the militia in effect at the will of
congress, and produce a military consolidation of these states. The act
of 28th February, 1795, vested in the president the power of calling
forth the militia when any one of the exigencies existed, and if to that
be superadded the power of determining when the casus fæderis occurred,
the militia would in fact be under the president's control.
As to the question how the militia were to be commanded, when duly
called out the judges were of opinion, that the president alone, of all
the officers acting under the United States, was authorized to command
them, and that he must command them as they were organized, under
officers appointed by the states. The militia could not be placed under
the command of an officer not of the militia, except that officer be the
president of the United States. But the judges did not determine how the
militia were to be commanded, in case of the absence of the president,
and of a union of militia with troops of the United States; and whether
they were to act under their separate officers, but in concert as allied
forces; or whether the officer present who was highest in rank, be he of
the militia or of the federal troops, was to command the whole, was a
difficult and perplexing question, which the judges did not undertake to
decide. [19]
The president of the United States declared that these constructions of
the constitutional powers of the general government over the militia
were novel and unfortunate, and he was evidently and decidedly of a
different opinion. He observed, in his message to congress on the 4th
November, 1812, that if the authority of the United States to call into
service and to command the militia, could be thus frustrated, we were
not one nation for the purpose most of all requiring it. These
embarrassing questions, and the high authority by which each side of the
argument is supported, have remained to this day unsettled by the proper
and final decision of the tribunal that is competent to put them to
rest. The case of Houston v. Moore, [20] is the only one in which the
national command of the militia seems to have been at all a subject of
judicial discussion, and that case does not touch the points at issue
between the United States and the state of Massachusetts and
Connecticut, though the opinion of one of the judges [21] went far
towards destroying the claims advanced on the part of those states. I do
not wish to interfere in this place with vexed and undecided questions.
My object, in the course of these elementary lectures, is to confine
myself to a comprehensive and just survey of the principles of our
government as they have been discussed, or as they have been practically
explained and settled by competent authority. It may, however, be truly
observed, that since the year 1812, when those questions were raised,
many great and deeply interesting questions arising on the powers of the
union, have been investigated and decided, and the progress of opinion,
and the course of those decisions, have been in favour of a pretty
liberal and enlarged construction of the constitution of the United
States. The principles of the government, as now understood, would be
much more favourable than they were in 1812, to the claim of the
President of the United States, to judge exclusively and authoritatively
when the militia were to be called out into the service of the union.
The case of Houston v. Moore [22] settled some important questions
arising upon the national authority over the militia. The acts of
congress already referred to, and the act of 8th March, 1792, for
establishing a uniform militia, were considered as covering the whole
ground of congressional legislation over the subject. The manner in
which the militia were to be organized, armed, disciplined and governed,
was fully prescribed; provision was made for drafting, detaching and
calling forth the state quotas, when requested by the president. His
orders were to be given to the chief executive magistrate, or to any
militia officer be might think proper. Neglect or refusal to obey his
orders was declared to be a public offence, and subjected the offender
to trial and punishment, to be adjudged by a court martial, and the mode
of proceeding was perspicuously detailed.
The question before the Supreme Court of the United States was whether
it was competent for a court martial, deriving its jurisdiction under
state authority, to try and punish militia men drafted, detached and
called forth by the president into the service of the United States, and
who bad refused or neglected to obey the call. The court decided, that
the militia, when called into the service of the United States, were not
to be considered as being in that service, or in the character of
national militia, until they were mustered at the place of rendezvous,
and that until then, the state retained a right, concurrent with the
government of the United States, to punish their delinquency. But after
the militia bad been called forth, and had entered into the service of
the United States, their character changed from state to national
militia, and the authority of the general government over such
detachments was exclusive. Actual service was considered by congress as
the criterion of national militia, and the place of rendezvous was the
terminus a quo the service, the pay, and subjection to the articles of
war were to commence. And if the militia, when called into the service
of the United States, refuse to obey the order, they remain within the
military jurisdiction of the state, and it is competent for the state to
provide for trying and punishing them by a state court martial to the
extent and in the manner prescribed by the act of congress. The act of
Pennsylvania of 1814, provided for punishing, by a state court martial,
delinquent militia men, who were called into the service of the United
States, and neglected or refused to serve; and they were to be punished
by the infliction of the penalties prescribed by the act of congress,
and such an act was held not to be repugnant to the constitution and
laws of the United States. It was the lawful exercise of concurrent
power, and could be concurrently exercised by the national and state
courts martial, as it was authorized by the laws of the state, and not
prohibited by those of the United States. It would remain to be so
exercised, until congress should vest the power exclusively elsewhere,
or until the states should divest their courts martial of such a
jurisdiction. This was the decision, in the first instance, of the
supreme court of Pennsylvania; [23] and it was affirmed, on appeal, by
the majority of the Supreme Court of the United States.
(7.) The authority of congress to appropriate public moneys for internal
improvements, has been much discussed on public occasions, and between
the legislative and executive branches of the government; but the point
has never been brought under judicial consideration.
It has been contended, that under the power to establish post offices
and post roads, and to raise moneys to provide for the general welfare,
and as incident thereto, congress have the power to set apart funds for
internal improvements in the states, with their assent, by means of
roads and canals. Such a power has been exercised to a certain extent.
It has been the constant practice to allow to the new states a certain
proportion of the proceeds arising from the sale of public lands, to be
laid out in the construction of roads and canals within those states, or
leading thereto. In 1806, congress authorized a road to be opened from
Nashville, in Tennessee, to Natchez; and, in 1809, they authorized the
canal of Carondelet, leading from lake Ponchartraine, to be extended to
the river Mississippi. The Cumberland road was constructed under the act
of March 29th, 1806, and this road had been made under a covenant with
the state of Ohio, by the act of April 30, 1802, that a portion of the
proceeds of lands lying within that state, should be applied to the
opening of roads leading to that state, with the consent of the states
through which the road might pass. But the expenditures on that road
have exceeded the proceeds of sales of public lands in Ohio, above one
million of dollars, and, in 1817, the President of the United States
objected to a bill, on the ground that the constitution did not extend
to making roads and canals, and improving water-courses through the
different states; nor could the assent of those states confer the power.
Afterwards, in 1822, the president objected to a bill appropriating
money for repairing Cumberland road, and establishing gates and tolls on
it.
On these and other occasions, there has been a great and decided
difference of opinion between congress and the president on this
constitutional question. President Jefferson, in his message of December
2d, 1806, and President Madison, in his message of December 3d, 1816,
equally denied any such power in congress. On the other hand, it
appears, that congress claim the power to lay out, construct, and
improve, post roads, with the assent of the states through which they
pass. They also claim the power to open, construct, and improve.
military roads on the like terms, and the right to cut canals through
the several states, with their assent, for promoting and securing
internal commerce, and for the more safe and economical transportation
of military stores in time of war; and leaving, in all these cases, the
jurisdictional right over the soil in the respective states.
In the inaugural address of President Adams, on the 4th of March, 1825,
he alluded to this question, and his opinion seemed to be in favour of
the constitutional right, and of the policy and wisdom of the liberal
application of the national resources to the internal improvement of the
country, He intimated, that speculative scruples on this subject would
probably be solved by the practical blessings resulting from the
application of the power, and the extent and limitations of the general
government, in relation to this important interest, settled and
acknowledged to the satisfaction of all. This declaration may be
considered as withdrawing the influence of the official authority of the
president, from the side on which it has hitherto pressed, and adding it
to the support of the preponderating opinion, in favour of the
competency of the power claimed by congress.
____________
1. 2 Cranch. 358.
2. 3 Cranch, 73.
3. 5 Cranch, 289.
4. 8 Cranch, 431.
5. 2 Wheaton, 396.
6. Watkins v. Otis, 2 Pickering , 102.
7. 4 Wheaton , 316.
8. 9 Wheaton, 359, 360.
9. 3 Dallas, 171
10. 5 Wheaton, 317.
11. 8 Wheaton, 543.
12. 6 Cranch, 142, 143.
13. Acts of 7th of August, 1789. January 14th, 1805. March 3d. 1817.
February 16th. 1819. April 24th. 1820.
14. 7 Cranch, 481.
15. 3 Wheaton, 234.
16. Shumway v. Stillman, 4 Cowen, 292.
17. 6 Wheaton, 129.
18. See Documents, August,1812.
19. 8 Mass. Rep. 554.
20. 5 Wheaton, 1.
21. Johnson, J.
22. 5 Wheaton 1.
23. 5 Serg. and Rawle 169.